Opinion
No. 113 KA 20-01087
03-24-2023
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. DECARRIO SANDERS, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (HARMONY A. HEALY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (HARMONY A. HEALY OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, MONTOUR, AND OGDEN, JJ.
Appeal from a judgment of the Erie County Court (Susan M. Eagan, J.), rendered March 21, 2019. The judgment convicted defendant, upon a plea of guilty, of assault in the first degree and criminal possession of a weapon in the second degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of assault in the first degree (Penal Law § 120.10 [1]) and criminal possession of a weapon in the second degree (§ 265.03 [3]). Assuming, arguendo, that defendant's waiver of the right to appeal is invalid and thus does not preclude his challenge to County Court's refusal to suppress certain identifications made by witnesses to the crime (see generally People v Alls, 187 A.D.3d 1515, 1515 [4th Dept 2020]), we reject that contention.
The challenged show-up identification procedures, which occurred within minutes of defendant's detention, in proximity to the scene of the crime, and at a time when defendant was not handcuffed, were" 'reasonable under the circumstances'" (People v Cedeno, 27 N.Y.3d 110, 123 [2016], cert denied - U.S. -, 137 S.Ct. 205 [2016]; see People v Norman, 183 A.D.3d 1240, 1240 [4th Dept 2020], lv denied 35 N.Y.3d 1047 [2020]). Those procedures were "part of a continuous, ongoing police investigation" and were "conducted as soon as practicable following defendant's apprehension" (People v Johnson, 202 A.D.3d 1471, 1472 [4th Dept 2022], lv denied 38 N.Y.3d 1033 [2022] [internal quotation marks omitted]; see People v Duuvon, 77 N.Y.2d 541, 544-545 [1991]; People v Swain, 109 A.D.3d 1090, 1091 [4th Dept 2013], lv denied 23 N.Y.3d 968 [2014]).
Contrary to defendant's further contention, the photo array used during the challenged photo identification procedure was not unduly suggestive (see generally People v Chipp, 75 N.Y.2d 327, 335 [1990], cert denied 498 U.S. 833 [1990]). Although the array had a greenish tint that impacted each of the photographs uniformly," '[t]he composition and presentation of the photo array[] were such that there was no reasonable possibility that the attention of the witness[ ] would be drawn to defendant as the suspect chosen by the police'" (People v Butler, 140 A.D.3d 1610, 1611 [4th Dept 2016], lv denied 28 N.Y.3d 969 [2016]).
Defendant failed to preserve for our review his remaining contention, regarding the legality of his initial detention (see generally CPL 470.05 [2]; People v Hudson, 158 A.D.3d 1087, 1087 [4th Dept 2018], lv denied 31 N.Y.3d 1117 [2018]).